PRESIDENT RAMAPHOSA’S SERIOUS CONSTITUTIONAL VIOLATION DESERVES THOROUGH INVESTIGATION.

 

By: Paul Ngobeni

 

Our rudderless President Ramaphosa has been exposed not only for his lack of leadership but also for his gross misunderstanding of the country’s constitution. We all know that he was a victim of alleged theft but it is the origin of the vast amounts of US dollars in his possession that has aroused suspicion of criminal wrongdoing.  Additionally, Ramaphosa’s non-compliance with the constitution and other anti-corruption laws has unleashed the chorus of condemnation and vociferous calls for his investigation for corruption. Ramaphosa’s failure to report the theft of large sums of money in foreign currency in accordance with the law arouses suspicion that the money he squirreled away in furniture on his farm emanated from illicit activities, including money-laundering, bribery and others. Accordingly, his loud protestations that the stolen money comes from legitimate transactions can legitimately be ignored. His bizarre argument that reporting the matter to the police or making public the theft occurrence would have caused panic to the farming community is so asinine that it must be rejected outright. He set in motion a series of unlawful activities with predictable consequences. The head of Presidential Protection is a member of the SAPS and had a duty to report the theft and suspicious foreign currency to the Hawks. That was derailed by Ramaphosa’s unlawful instructions.  Rhoode allegedly assembled a posse of vigilantes who managed to track down, apprehend, interrogate and even torture the suspects who ultimately returned the loot.  A proper police investigation will deal with the criminal aspect of all that. For now I only deal with the violation of Section 96 of the Constitution.

 

The pivotal legal question is as follows: Has Ramaphosa violated Section 96(2) of the Constitution which prohibits the President and members of cabinet to (a) undertake any other paid work; and (b) act in any way that is inconsistent with their office, or expose themselves to any situation involving the risk of' a conflict between their official responsibilities and private interests? If so, is this violation serious enough to warrant impeachment under Section 89 of the Constitution?

 

Undoubtedly, Ramaphosa has through words and deeds admitted that he regularly engages in the business of farming, as evidenced by his recent auctions held at his farm. He knowingly engaged in unlawful acts in contravention of section 96(2) of the Constitution because he undertakes “any other paid work” through his farming activities. Contrary to the narrative of his spin doctors, this requires that we focus not just on whether the President has abused his office for personal gain. We must decipher whether the self-standing provision of Section 96(2) (a) proscribing “any other paid work” prohibits him from actively carrying on his business as a farmer who buys and sells cattle at auctions conducted on his farm.  His handlers have argued that so long as he has declared these activities to the Secretary of Cabinet.  he must get away Scott-free.  That is simply misplaced.

 

The interpretation of Secton 96 of the Constitution requires that we consider the United Nations Convention against Corruption, (UNCAC) which was adopted on 31 October 2003 and entered into force on 14 December 2005. South Africa signed the Convention on 9 December 2003 and ratified it on 22 November 2004. See, Glenister v President of the Republic ZACC 6; 2011 (3) SA 347 (CC) (17 March 2011).  Article 8, entitled “Codes of Conduct for Public Officials” deals most explicitly with conflicts of interest. It encourages the promotion of ethical behaviour and the implementation of codes of conduct, as well as the establishment of disclosure requirements, complaints processes, and disciplinary measures for breaches of codes of conduct. Article 8 (5) refers to the “private interests” to be disclosed namely, “their  outside  activities,  employment,  investments,  assets  and  substantial  gifts  or  benefits  from  which  a  conflict  of  interest may  result  with  respect  to  their  functions  as  public  officials.” Article 8 (6) requires that signatory states “shall  consider  taking,  in  accordance  with  the  fundamental  principles  of  its  domestic  law,  disciplinary  or  other  measures  against public  officials  who  violate  the  codes  or  standards  established  in  accordance with  this  article.” Ramaphosa knows that South Africa has an obligation that arises from the ratification of the UNCAC and the enactment of the Prevention and Combating of Corrupt Activities Act (PRECCA). Further, this obligation arises from the positive obligation of the state to protect the rights in the Bill of Rights which is imposed by section 7(2) of the Constitution as informed by South Africa‘s obligations under the Convention.

 

Remarkably, at the very inception of our democracy, the Mandela-led ANC government implemented a Code of Conduct which was contained in the Ministerial Handbook of 1994 which remained in force until substituted by an updated version on 5 May 1999, which contained similar provisions. In addition to explicitly compelling a Minister and/or Member of Cabinet to observe and uphold the Constitution, the Code specifically provides inter alia that:

1.3 (d)  Ministers shall not play any active role in profit making institutions.

1.3 (g) Ministers may only accept small gifts and gifts offered on official occasions, provided that they have satisfied themselves that the gifts are not being presented to influence them in an improper manner.

 Clearly the prohibition against Ministers playing "any active role in profit making institutions" can have no other meaning than engagement in business or enterpreneurial activities.

Under President Mbeki, the Executive Ethics Code of 2000 promulgated in terms of Section 2(1) of the Executive Members Ethics Act (1998) applied to the President in his capacity as President and member of Cabinet. It too imposed a duty on him to maintain the highest standards of ethical propriety and expanded on his constitutional duties by prohibiting him from, inter alia,:

 

(a) willfully misleading the legislature;

(b) undertaking any other paid work;

(c) acting in any way that is inconsistent with his office;

(d) exposing himself to any situation involving the risk of a conflict between his official responsibilities and his private interests; …

(f) acting in a way that may compromise the credibility or integrity of his office or of the government.

 

The Executive Ethics Code furthermore imposed a duty on Ramaphosa to disclose the same financial interests to the Secretary of Cabinet. 

 

In addition, in 2007 Mbeki introduced an amended Code of Conduct contained in the Ministerial Handbook of 2007 which remained in force until recently. It states on clause 2.3 that Cabinet Members may not: “(a) Deliberately or inadvertently mislead the President,  or  the Premier or, as the case may be; the legislature… (f) receive remuneration for any work or service other than for the performance of their functions as Members.” Receiving remuneration for farming activities at auctions is clearly a flagrant violation of the Code of Conduct.

 

A cursory survey of analogous provisions in the constitutions of other countries with written constitutions comparable to ours reveals that the scope of the prohibition against “undertaking any other paid work” is broad to render Ramaphosa’s self-admitted farming activities a serious violation of the constitution.  Some countries are far more explicit in describing what is proscribed while others appear to regard it as intuitively obvious that moonlighting as a businessman while at the same time holding elected position as president or head of government are incompatible.

 

In the first group are those which expressly outlaw “entrepreneurial activities”. For an example the constitutions which expressly outlaw business activities are the following:

·      Armenia (Article 88 states “A member of the Government may not engage in entrepreneurial activities, hold office in state and local self-government bodies or in commercial organisations not connected with his duties, or be involved in another paid work, except for academic, pedagogical and creative activities.”); 

·      Ukraine (Article 103 states: “The President of Ukraine shall not …perform any other paid or entrepreneurial activity, or be a member of an administrative body or board of supervisors of an enterprise that is aimed at making profit. In addition, Article 120  states: “Members of the Cabinet of Ministers of Ukraine and chief officers of central and local bodies of executive power do not have the right to combine their official activity with other work, except teaching, scholarly and creative activity outside of working hours, or to be members of an administrative body or board of supervisors of an enterprise that is aimed at making profit.”);

·      Belarus (Article 86 states: The President may not hold other offices or receive any monetary remuneration other than his salary, apart from royalties for works of science, literature and art.);

·      Kazakhstan(Article 43 states: “1. The President of the Republic of Kazakhstan shall not have the right to be a deputy of a representative body, hold other paid offices and engage in entrepreneurial activity.”);

·      Azerbaijan (Article 122 states thePrime-minister …, his deputies, ministers, heads of other central bodies of executive power may not not be involved in business, commercial and other payable activity except scientific, pedagogical and creative activity, may not get remuneration other than their wages and money for scientific, pedagogical and creative activity);

·      Cyprus (Article 41 states: “2. The President and the Vice-President of the Republic shall not, during their term of office, engage either directly or indirectly, either for their own account or for the account of any other person, in the exercise of any profit or non-profit making business or profession.);

·        Georgia (Article 72  - The President may not …engage in entrepreneurial activity, receive salary or another permanent remuneration for any other activity.);

·      Lithuania (Article 99- The Prime Minister and Ministers may not … be employed in business, commercial or other private institutions or companies, and may not receive any remuneration other than the salary established for their respective Government offices and compensation for creative activities.);

·       Peru (Article 126 - Ministers shall neither be manager of their own interests or of third parties, nor engage in profitable activities, nor be involved in the administration or management of private enterprises or associations); Slovakia:(Article 109 - (1) The Government shall consist of the Prime Minister, Deputy Prime Ministers and Ministers. (2) The discharge of the post of a member of the Government shall be incompatible .. with an entrepreneurial activity, with membership in governing or control body of a legal person, which pursues an entrepreneurial activity or with another economic or gainful activities apart from the administration of his or her own property and scientific, pedagogical, literary or artistic activity);

·      Spain (Article 98 - Members of the Government may not perform representative functions other than those derived from their Parliamentary mandate, nor any other public function not derived from their office, nor engage in any professional or commercial activity whatsoever.)

 

 

In the second group are those countries whose constitutions are not as explicit in terms of the nature of the activities proscribed but are very clear that outside employment in income generating activities is incompatible with one’s duties as a head of government.  For an example, the constitution of Austria, Article 61 simply states: “During his tenure of office the Federal President may not belong to any general representative body nor exercise any other occupation.”  The constitution of Germany provides as follows: Article 55 Debarment from other office

(1) The Federal President may not be a member of the government nor of a legislative body of the Federation or a Land.

(2) The Federal President may not hold any other salaried office nor practise a trade or profession nor belong to the management or supervisory board of an enterprise.

Article 66 Debarment from other office

The Federal Chancellor and the Federal Ministers may not hold any other salaried office nor practise a trade or profession nor belong to the management or, without the consent of the Bundestag, the supervisory board of an enterprise.

 

The constitution of Hungary is also pellucid and states on Article 12 that: 

“The President of the Republic may not pursue any other gainful occupation and may not accept remuneration for other activities, with the exception of activities falling under the protection of intellectual property law.”

 

In the third group are those countries where the emolument from other sources is proscribed.  In Ireland, Article 12 of the Constitution states: “3o The President shall not hold any other office or position of emolument.”  The Slovenian constitution, Article 105 entitled “Incompatibility of Offices” states the “office of the President of the Republic shall be incompatible with other public offices or other employment.”

 

Viewed with this prism Ramaphosa has a serious constitutional case to answer. This is no time for casuistry but for concomitant action. A purposive interpretation of our Constitution by a serious-minded citizenry determined to root out corruption is what we desperately need now.

 

CHIEF JUSTICE ZONDO’S MISSED DEADLINES - WHY STATE CAPTURE REPORT MAY BE INVALID

 

            By Paul M. Ngobeni

 

Chief Justice Zondo and President Ramaphosa are busy wreaking havoc on the constitution of this country while inflicting irreparable damage on the credibility of our judiciary.  Truth be told, Zondo applied for and obtained a final extension from the courts but he blew the deadline. There is no evidence that he applied nunc pro tunc for any further extensions.  Currently, the Zondo Commission ceased to exist beyond the 15 June 2022 deadline, thereafter it lacks jurisdiction to do anything pursuant to its terms of reference. Its is axiomatic that, absent a valid court-ordered extension beyond 15 June 2022, the Commission could not conduct any inquiries beyond that date for the simple reason that it had ceased to exist.  It cannot issue valid reports.

 

The Bard of Avon once admonished that we should “defer no time” and warned that "delays have dangerous ends." (Henry VI, Shakespeare). The latest comical helter-skelter  hurtling by the Chief Justice Zondo to finalize the completion of the “State Capture” report, after he piled delay upon delay, and blew the court-ordered deadline bears out this admonition.  For the entire four years he presumably devoted to the Commission Chief Justice Zondo engaged in inexcusable delays, procrastinated and squandered the time he was afforded and cavalierly flouted the court-ordered deadlines established at his own request. The date 15 June 2022 should have been edged in his mind as the drop-dead date – it was the Zondo Commission’s court-ordered deadline to wrap up its work and issue its final report. 

 

But true to form, Zondo failed abysmally to comply and has, offered a plethora of excuses for his non-compliance.  On 18 June 2022, the State Capture Commission issued a statement saying it was “not able to submit the final volume of its report to the President on 15 June 2022 due to certain challenges.”  At the same time, the Commission promised that an electronic report would “certainly” be submitted to the president on 19^th June 2022 and a hard copy, on 20 June 2022 during a “hand-over ceremony.” Needless to state that Zondo who never asked for another extension of the 15 June 2022 deadline is never short of excuses.

 

Remember that after an urgent application Zondo filed in February 2022, the court granted Zondo a seventh extension until the end of April 2022.  In his final extension he falsely promised that this would be the last extension he would seek to complete the writing of the report. He stated, to the extent that the “commission may complete its report within the six additional weeks if this honourable court grants the extension, the only other extension that the commission may apply for would not be one to enable it to complete the report, but one which the commission may need to wrap up administratively.”

 

We should also remember that Zondo previously filed a February 2022 application for an extension. As if to highlight the irreconcilable conflict arising from his moonlighting as Chief Justice and service as State Capture Commissioner, Zondo’s claimed motivation was that he had needed time to prepare for his interview with the Judicial Service Commission (JSC) as one of four candidates for the position of chief justice. After performing abysmally and losing out to SCA President Maya, Zondo was nonetheless promoted to the Chief Justice position and frittered away more time chairing the JSC as it interviewed candidates for judicial appointment. He confessed: “As a result of those interviews and the preparation that went into them, my work relating to the commission was interrupted.”  It is unfathomable that such lame excuses would be offered or accepted to any court in this country – the law reports are replete with deserving cases that were dismissed for alleged failure to comply with court-ordered deadlines.  But the Zondo-led judiciary appears willing to grant the executive and the Commission more indulgences and is unconcerned about its indolence. The adage that justice delayed is in every sense justice denied should concern us all.  The dilatory tactics and executive interference which prevents the adjudication of citizens’ rights and protects legal wrongs, is in a very practical sense justice sold.

 

Even more alarming are news reports that President Ramaphosa has met with Zondo to discuss the timing of the finalization of the report. This has prompted reactionary leaders of the opposition parties such as  Steenhuisen to crow that this is "completely inappropriate". Steenhuisen saod: "Because we all know that Mr Ramaphosa himself appeared before the Zondo Commission, that Mr Ramaphosa himself could well be implicated in this final report. And, therefore, it is wholly inappropriate and deeply unethical, for somebody who is the subject of the report, whose party is the subject of the report, to be meeting with the judge, to discuss the timing of the release of the report."  He said Ramaphosa and Zondo needed to take the country into their confidence and explain the reasons for the meeting and why the report was delayed. Steenhuisen added: “Because in the absence of that explanation, it's going to look increasingly like this report is being managed and massaged because the Phala Phala has now created inconvenient timing for Mr Ramaphosa to be facing any further allegations.”

 

I have previously written that after the Commission was established Ramaphosa took an insidious step to weaponize the Commission as a political tool to be used selectively against his political enemies. Following loud criticism of the NPA for its alleged failure to prosecute high profile state capture cases, Ramaphosa amended the Commission’s regulations to allow the Zondo Commission to be used as a Trojan horse for the unwary.

Ramaphosa has effectively forced DCJ Zondo to operate as an appendage to the NPA’s criminal prosecution and investigations which appears to be unlawful and unconstitutional. Lawyers will have a field day litigating such matters and exposing just how corrupt and manipulative Ramaphosa has been. I previously asked a rhetorical question - can a law-abiding, rational, honest and duty-conscious President commit himself to accepting and implementing the report of a commission before it is even drafted and published or before he has even seen its contents? The latest reports of unexplained meetings between Ramaphosa and Zondo simply confirm that our worst fears of political gerrymandering of the State Capture report are about to be realized.

 

A pivotal legal question is this: Given that the Zondo Commission had a court-ordered deadline of 15 June 2022 to finalize its work and reports, is it constitutional for the President to accept a report from such a Commission beyond the court-ordered deadline? As a corollary, would a belated Report signed by Zondo and provided to Ramaphosa, at a future time when the Zondo Commission is no longer in existence and when there is no basis in law in terms of which the Commission is authorised, entitled or obliged to deliver the report be regarded as legally valid?  Fortunately, we need not re-invent the wheel here as the courts have already answered. 

 

In Godongwana and Others v Pillay, J. and Others (1989/2008) [2009] ZAECGHC 29 (18 May 2009) Judge Ronnie Pillay headed a Commission which was appointed appointed by Eastern Cape Premier Nosimo Balindlela to investigate corruption in the provincial government.  Pillay compiled an explosive report detailing corruption in the Eastern Cape government.  The Commission ruled that Makhenkesi Stofile, Eastern Cape ANC chairperson and Mcebisi Jonas, and ANC executive and former economic development MEC Enoch Godongwana were corrupt and that their family members benefited from improperly awarded loans and contracts worth millions of rands. The applicants sought judicial review in terms of which they sought to have the report of the Commission reviewed and set aside; they also sought a declaratory order that the report was a nullity and of no force and effect.

 

The Court agreed – it ruled that although the lifespan of the Commission was extended by proclamation on two occasions, the second of which to 30 September 2006, Ms Balindlela purportedly further extended its duration until 31 December 2006. But it was clear that there was no proclamation extending the life of the Commission beyond 30 September 2006.  The court agreed with the applicants that even assuming the valid extension of the lifespan of the Commission to 31 December 2006, it was no longer in existence on 1 June 2007 when the Report was signed and provided to Ms Balindlela - in other words, it was powerless to do anything and in particular lacked power to issue the Report. In Stafford v Special Investigating Unit 1999 (2) SA 130 (ECD) Leach J, remarked that a commission of inquiry, in that case, the Heath Commission, likewise, as in casu, established in terms of the Provincial Commissions Act (Eastern Cape) does not enjoy juristic personality under the common law. He held that as a creature of statute it only has such juristic personality as is conferred upon it by the statute to which it owed its existence. Consequently, both the inquiry and the report would have to be completed within the stipulated period or such extended period any further proclamation decreed.  The Court ruled that:

 

If the further extension to 31 December 2006 was legally valid, and about that I have grave reservations, then the Commission ceased to exist beyond that date absent a proclamation to that effect. None has been shown to exist. In my view therefore the Commission lacked jurisdiction thereafter to do anything pursuant to its terms of reference. Its is axiomatic that, even assuming a valid extension to 31 December 2006, the Commission could not conduct any inquiries beyond that date for the simple reason that it had ceased to exist. As a necessary corollary, it likewise had no power to produce a report. The Report is therefore in my view clearly a nullity and liable to be set aside in terms of s 6 (2) (a) (i) of PAJA.

 

In Zondo’s case it gets even worse – he applied for and obtained a final extension from the courts but he blew the deadline. There  is no evidence that he applied nunc pro tunc for any further extensions.  Currently, the Zondo Commission ceased to exist beyond the 15 June 2022 deadline, thereafter it lacked jurisdiction to do anything pursuant to its terms of reference. Its is axiomatic that, absent a validcourt-ordered extension beyond 15 June 2022, the Commission could not conduct any inquiries beyond that date for the simple reason that it had ceased to exist. As a necessary corollary, it likewise had no power to produce a report.  The much-reviled scandalous meetings between the President and Zondo are meant to micro-manage the failures of Zondo and to salvage the State Capture Commission.

 

The other notorious case involved PW Botha, the second last State President under apartheid. Botha became the first apartheid head of state to face criminal charges after Western Cape Attorney-General Frank Kahn announced he would prosecute Botha for ignoring a subpoena to appear before the Truth and Reconciliation Commission. TRC deputy chairman Dr Alex Boraine made a late appeal for Botha to reconsider, saying the TRC would approach Kahn to withdraw charges should he agree to appear before the TRC. Botha demurred. The decision to prosecute followed a public battle of wills between Botha and the TRC, in which he failed three times to appear before the commission: initially because he was ill, but later because it was a "circus" and a "witch-hunt" against apartheid leaders.  After his second refusal the TRC wanted to charge him but Kahn ruled the subpoena was flawed. Third time around, Botha defied another subpoena. Kahn told a news conference that in considering whether to prosecute, Botha's personal circumstances had weighed heavily on him. "He is almost 82 years of age and no attorney-general in any civilised country lightly decides to prosecute a person of his age, especially given Mr Botha's medical history." However, he had eventually decided that a prosecution was warranted in law and in the public interest. Kahn said he had not bowed to any political pressures in deciding to prosecute, and had not consulted any politician or persons outside his office. The TRC believed that Botha, with his experience and information as defence minister, prime minister and state president, could give vital information for the commission to fulfill its mandate. It was clear that as chairman of the former State Security Council, Botha had information, knowledge and opinions the commission needed to weigh up, and which were critical for it to complete its work.

 

On August 21, 1998, P.W. Botha was convicted and fined 10,000 rand or imprisonment for a year by a black magistrate, Mr Victor Lugaju, in the regional court in George. See; Botha fined for his refusal to answer Truth Commission Sat, Aug 22, 1998, 01:00 PATRICK LAURENCE https://www.irishtimes.com/news/botha-fined-for-his-refusal-to-answer-truth-commission-1.185506   Pronouncing his verdict Mr Lugaju said: "It is the unanimous decision of the court that the failure of the accused to appear [before the TRC] was unlawful, intentional and without sufficient cause. The accused is accordingly found guilty on the main charge." But Mr Botha immediately served notice that he would continue his struggle against what he believed was a TRC bias towards the African National Congress and against Afrikaners. After he was released on bail of 50 rand, his lawyers told journalists that an appeal against his conviction and sentence had already been filed with the High Court in Cape Town.

 

On appeal, the notice to testify issued against Botha was also set aside by the High Court. See S v Botha 1999(2) SACR 261(C). Judge Selikowitz said the appeal had succeeded because the TRC's power to summon witnesses had temporarily expired at the time it issued the subpoena demanding Mr Botha's attendance. In his judgment, Selikowitz stated at p. 271 that:

 

"I should like to record that this Court is mindful of the fact that there will be many who may consider that it is unjust that the appellant should succeed in his appeal upon the basis that the s 29(1)(c) notice issued by the TRC and served on him on 5 December 1997, was unauthorised because it was prematurely issued. Indeed, Mr Morrison submitted that this Court should not permit the appellant to take what he called 'technical points' because of the intransigent and obdurate attitude which the appellant had demonstrated towards the TRC. The TRC was established to perform a noble and invaluable task for our country. It remains, however, a statutory body clothed only with the powers that the Legislature has given it. This Court is duty-bound to uphold and protect the Constitution and to administer justice to all persons alike without fear, favour or prejudice, in accordance with the Constitution and the law. Suffice it to say that the same law, the same Constitution which obliges the appellant to obey the law of the land like every other citizen, also affords him the same protections that it affords every other citizen."

 

Judge Selikowitz overturned the conviction on a technicality and predictably some South Africans were outraged. Zondo has already been criticized by fellow Constitutional Court judges for his legendary delays and incompetence regarding the Zuma contempt case. The issue of the court-ordered deadlines and validity of the report cannot be separated from the other issues that will be subject to the applications to review and set aside the entire State Capture Commission and Zondo’s impugned actions.